FWP TERMINATION AND COMPLAINT PROCEDURES
As amended and approved by the UD Faculty Senate in the
Special Faculty Senate meeting on 12 January 2015
COMMITTEE ON FACULTY WELFARE AND PRIVILEGES
TERMINATION AND COMPLAINT PROCEDURES
Jurisdiction
The Faculty Constitution charges the Faculty Senate with the right to delegate responsibility to
and charge Faculty Committees. The Faculty Welfare and Privileges Committee (FWP) has
jurisdiction over all faculty disputes pertaining to faculty termination, reappointment,
evaluation, salary adjustment, sabbatical leave, fringe benefits, academic freedom, and other
areas of personnel policy and conditions of faculty employment.
All Faculty members are within the jurisdiction of and are subject to the procedures of the FWP.
The procedures for termination of a faculty member's employment are different from the
procedures for other disputes. Termination procedures are derived from and governed by the
termination policy set forth in the Faculty Handbook, Section 4. They are set forth in
"Termination Procedures," Section I below.
The procedures for handling all other disputes within the jurisdiction of the FWP are specified
in "Mediation and Hearing Procedures," Section II below. The FWP may refuse to consider a
complaint in two instances:
1. if the Committee determines that the issue is not in its purview;
2. if the matter under dispute is deemed insubstantial by a majority of the Committee
after the Initiator(s) has(have) followed the steps outlined in Section II‐B.
I. Termination Procedures
A. Definitions
For the purposes of Faculty Welfare and Privileges Committee procedures in termination cases
as outlined below, the following words have these specific meanings:
1. A termination case arises when an appropriate administrator sends a faculty member a
letter of intent to terminate for one of the three causes enumerated in the Faculty
Handbook, 4.1.15 (incompetence, gross irresponsibility, or moral turpitude). Note that a
Page 1 of 23
“termination case” is not the same as a “grievance case”. A grievance is an alleged
violation of the AAUP bargaining agreement and is pursued through the AAUP Grievance
Procedure.
2. Hearing refers to the specific steps in C below for the hearing and investigation of
termination cases.
3. Faculty refers to all voting and non-voting Faculty members as defined by the Faculty
Constitution, I, Section I.
4. The Committee refers to the Faculty Welfare and Privileges Committee.
5. Initiator refers to an administrator who sends a letter of intent to terminate.
6. Respondent refers to Faculty, including administrators, against whom an Initiator(s) files
a letter of intent to terminate.
7. Party refers to either Initiator(s) of or Respondent(s) to a termination case.
8. Hearing Panel refers to the Committee members selected to hear a particular
termination case.
9. Working Day refers to the days when the University conducts regular business, normally
Monday through Friday and excluding all University holidays. Winter and Summer
session days are included. To count Working Days, Parties exclude the day of the receipt
of materials or notice requiring response.
10. Response refers to the Respondent's written reply to the Initiator's letter of intent to
terminate.
11. Complainant refers to the student, staff or faculty member who brought a sexual
misconduct or other formal complaint of wrongdoing against the Respondent prompting
the FWP proceeding.
12. Sexual Misconduct is a term used to encompass unwanted or unwelcome conduct of a
sexual nature that is committed without consent. Sexual Misconduct may include
sexual harassment, sexual assault, domestic violence, dating violence and stalking.
Speech appropriately related to curriculum, teaching, research, and scholarship is not
sexual misconduct. For a termination case, any such Sexual Misconduct also must fall
Page 2 of 23
within one of the three allowable causes enumerated in the Faculty Handbook, 4.1.15
(incompetence, gross irresponsibility, or moral turpitude). Nothing in this policy shall
infringe upon First Amendment or academic freedom protections set forth in either the
Faculty Handbook or in the Collective Bargaining Agreement between the University of
Delaware and the American Association of University Professors.
B. General Provisions
1. A Faculty member receiving a letter of intent to terminate has the right to refuse a
hearing. The decision for or against a hearing should be set forth in the Response to the
letter of intent to terminate. All reference below to a Respondent's rights and
obligations are subject to the Respondent’s right to withdraw from the hearing
procedures at any time.
2. The burden of proof in the proceedings rests with the party or parties bringing the
charge and the relevant standard in Faculty Welfare and Privileges termination
proceedings is clear and convincing evidence, unless the underlying complaint involved
Sexual Misconduct. If the underlying complaint involved Sexual Misconduct, then the
relevant standard is a preponderance of the evidence (more likely than not).
3. Each Party has the right to be represented by an advisor of their own choosing.
4. Each Party has the right to have an observer present of their own choosing.
5. All Faculty may avail themselves of these procedures.
6. All Parties to a Termination Case before the Committee must comply with the
Committee's procedures. In particular, all Parties must attend and participate fully in
any duly scheduled Committee Hearings on the Case to which they are Parties, unless
they are excused from attending in accordance with C-4 below.
7. A Party's failure to attend or participate fully in a duly scheduled Committee Hearing
constitutes a violation of the obligations of Faculty at the University of Delaware and will
result in such sanctions as the administration deems appropriate.
8. A Party's failure to comply with a provision of Committee procedures will result in that
Party's loss of those rights provided by that part of the procedure (for example,
documents not submitted within specified time limits will not be admitted as evidence
at the Hearing). One Party's failure to comply with Committee procedures does not
abrogate the other Party's responsibility to comply.
Page 3 of 23
C. Hearing Procedures
1. Preliminary Steps
a. Written Letter of intent to terminate
The Initiator(s) sends the Respondent(s) and the Committee a letter of intent to
terminate that sets forth a charge of gross irresponsibility, incompetence or
moral turpitude; briefly specifies the nature of the evidence for the charge; and
indicates the desired date and any conditions of termination.
b. Written Response
Within ten Working Days after the date that the Initiator(s) files a letter of intent
to terminate, the Respondent(s) shall file with the Committee a Response that,
at a minimum, indicates whether the Respondent(s) denies the charge and
wishes a hearing.
c. Expanded Written Charge
Within 15 Working Days after the date the Respondent(s) file a Response, the
Initiator(s) shall file with the Committee and the Respondent(s) an expanded
written charge that lays out the Initiator(s)’ case and sets out the process of
investigation leading to the decision to terminate. The expanded written charge
should include the essentials of the charge, which are: 1.) The identities of
people alleged to be involved in the offense (i.e., the alleged offender,
conspirators, victims); 2.) The standards that are alleged to have been violated;
and 3.) Particular actions alleged to have violated the standards. The Hearing
should include only charges for which the essentials have been provided. The
essentials of the process of the investigation are: 1.) The chronology of the
investigative steps and major decisions; 2.) Identities of investigators and key
decision-makers; 3.) Identities of investigative techniques; and 4.) A connection
between the investigative findings and the decision to terminate.
d. Pre-Hearing Meeting
Within 15 Working Days after the Initiator(s) submit an expanded written
Page 4 of 23
Complaint, the Chair of the Committee shall conduct a short Pre-Hearing
Meeting with the Initiator(s) and Respondent(s). Each Party shall have the
opportunity to be accompanied by their advisor, and the Complainant, if the
Complainant is involved, along with the Complainant’s advisor should the
Complainant wish, shall have an opportunity to meet with the Chair, either at
the same time as the Pre-Hearing Meeting or separately at the option of the
Complainant. At or before this meeting, any Party may raise any questions about
the charge, the hearing, advisors, or any other procedural matter; and the
Complainant shall have the same right. At the meeting, the Chair shall:
i.
Fix an expeditious and mutually agreeable time for the Hearing no sooner
than 20 days after the letter of intent to terminate;
ii.
Review Hearing procedures, including the Parties' obligations, the roles of
advisors and observers, the rules for submitting documentary evidence,
and possible limits on the number of witnesses;
iii.
Set deadlines for submission of documentary evidence and names of
witnesses to be called;
iv.
Identify advisors and observers selected by the Parties and;
v.
Tentatively name the Hearing Panel, pursuant to any Party's claims of
conflict of interest under Section 3-b or other cause for excusing a
Hearing panel member.
e. Witness Lists
Parties shall submit the names of witnesses to the Committee within the time
agreed upon in section d-iii above. The Committee shall make the names
available to all other Parties immediately. If the Committee decides to call
additional witnesses, it will immediately communicate their names to all
Parties. Before the Hearing, the Hearing Chair may question and rule on the
value of a witness to the proceedings and remove witnesses deemed redundant
secondary witnesses or otherwise not relevant to the details of the expanded
written charge.
Page 5 of 23
f. Documents
i.
Parties shall submit documents to the Committee at least 10 Working
Days before the Hearing or lose the right to submit documents. Within 5
Working Days after receipt, the Committee shall make all documents
available in the Senate office to all Parties and the Provost, and to no one
else; except that the Complainant, if there is one, also shall be given
access to all documents in the same manner as access is granted to all
Parties.
ii.
All documents shall be submitted in duplicate with one set being original
documents if at all possible. All documents shall remain in the possession
of the Committee. If original documents are in the possession of
someone not a Party to the Hearing, then the Committee may request
the submission of any such documents for the purpose of making a copy
of such document which shall be regarded as if original. If original
documents no longer exist, then copies may be accepted, subject to
verification where possible.
iii.
All documents and correspondence received by the Committee that
relate to a Hearing shall be made available by the Committee to the
Parties to that Hearing, to the Provost, and to no one else. Parties may
not remove original documents from the Senate Office, but may make
and remove copies. Items made available shall be considered confidential
and shall not be communicated to anyone not a Party, advisor or
observer.
2. The Hearing
a. Attendance is limited to the following:
i.
The Initiator(s) and the Respondent(s);
ii.
One advisor selected by each Initiator and one advisor selected by each
Respondent;
Page 6 of 23
iii.
One observer selected by each Initiator and one observer selected by
each Respondent.
iv.
The members of the Committee and supporting staff;
v.
Each witness during their testimony.
vi.
The Complainant may, but is not required to, attend the entire hearing
accompanied by an advisor or advocate of the Complainant’s choosing. If
the Complainant does not wish to be present in the hearing room, the
Complainant should be allowed to participate by videoconference.
b. Conduct of the Hearing
i.
It is the responsibility of the Committee and its support staff to arrange
hearing space and maintain records of the Hearing.
ii.
The Committee Chair or their appointed representative shall serve as
Chair of the Hearing. This Chair shall call the Hearing to order, determine
all procedural questions and objections raised at the Hearing, and
determine the admissibility of evidence.
iii.
All Parties, Advisors, Observers, Complainants (as appropriate) and
members of the Hearing Panel shall be identified for the record.
iv.
The record shall include both the Initiator(s)' letter of intent to terminate
and the Respondent(s)' response.
v.
Each witness shall be present in the hearing room only during the time of
their testimony and shall refrain from discussing the case with other
witnesses; provided, however, that the Complainant shall be entitled to
be present at the Hearing at all times as provided in Section I.C.2.a.vi
above.
Page 7 of 23
c. Statements and Questioning of Witnesses
i.
First the Initiator(s) and then the Respondent(s) may make an opening
statement.
ii.
The order in which witnesses shall be heard is as follows: first the
witnesses called by the Initiator(s), second those called by the
Respondent(s), and third those called by the Committee.
iii.
The order in which each witness shall be questioned is as follows:
a. Witnesses called by the Initiator shall be questioned first by the
Initiator, then by the Respondent and then by the Committee.
b. Witnesses called by the Respondent shall be questioned first by
the Respondent, then by the Initiator and then by the Committee.
c. Witnesses called by the Committee shall be questioned first by
the Committee, then by the Initiator and then by the Respondent.
d. If the Complainant is called as a witness, the person against whom
the complaint was brought may not directly question the
Complainant. Questioning should be conducted by that person’s
advisor.
iv.
After the Hearing Panel and the Parties have questioned a witness,
members of the panel and Parties may pose additional questions at the
discretion of the Chair.
v.
After all witnesses have been questioned, first the Initiator(s) and then
the Respondent(s) may make closing statements. After the closing
statements, the Hearing Panel may further question the Parties.
d. Transcript of Hearing
A tape and a transcript of the Hearing shall be made available by the Committee
to the Parties to the Hearing, to the Provost, to the Complainant, and to no one
else. The Parties and the Complainant shall not provide a copy of the tape or the
Page 8 of 23
transcript or show them to anyone other than their advisors, observers or legal
counsel.
3. The Hearing Panel
a. Membership
The Hearing Panel shall consist of five members of the Committee unless,
because of conflicts of interest as defined below (b), only four Committee
members are eligible.
b. Conflict of Interest
i.
Any member of the Committee who is a member of the department of
the Initiator(s) or the Respondent(s) or who has a relationship of
friendship, animosity, or some other nature that goes beyond mere
personal acquaintance or professional association may not serve on the
Hearing Panel unless otherwise agreed by all Parties.
ii.
Either Party may request that any member of the Hearing Panel be
excused for cause. Such a request must be made in writing to the
Committee no later than five Working Days after the Pre-Hearing
Meeting. The Committee shall decide whether the alleged cause justifies
excusing the member and shall notify all Parties of its decision and
reasons therefore at least 5 Working Days prior to the Hearing.
4. Attendance
a. All Parties to a Complaint before the Committee must attend and fully
participate in any duly scheduled Hearings on that Complaint.
b. The Committee may excuse a Party from attending under the following
circumstances:
i.
At least 15 Working Days prior to the Hearing, the Party notifies the
Committee in writing of a significant, conflicting obligation that prevents
the Party from attending; or
Page 9 of 23
ii.
At any time prior to the Hearing, the Party notifies the Committee in
writing of a serious and unexpected emergency or illness that prevents
the Party from attending.
c. A Party's failure to adhere to section a above, unless excused pursuant to
sections b-i or b-ii above, constitutes a violation of the obligations of Faculty at
the University of Delaware and will result in such sanctions as the administration
deems appropriate. In addition, at its discretion, the Committee may proceed
with a Hearing in a Party's absence.
d. If a Party is excused pursuant to sections b-i or b-ii above, the Committee shall
postpone the Hearing, reset the Hearing to the earliest possible mutually
agreeable date, and officially notify all Parties and witnesses of the new hearing
date within five Working Days.
5. Witnesses
a. It is the responsibility of the Parties to name their witnesses by the deadline
fixed in the Parties' preliminary agreement.
b. In the event that either the Initiator(s) or the Respondent(s) discover new
witnesses after the deadline agreed upon, their names shall be provided to the
Committee immediately. If the Committee determines that this discovery is
legitimate, then the other Parties shall be informed of the names of the new
witnesses immediately. However, all new witnesses must be identified and their
names communicated to all Parties at least eight Working Days prior to the
Hearing.
c. Each witness duly notified of a Hearing is obliged to attend and fully participate
in hearing procedures.
d. The Committee may excuse a witness from attending under the following
circumstances:
i.
Within seven Working Days of the date of the witness' notice to appear,
the witness notifies the Committee that the witness is unable to appear;
or
Page 10 of 23
ii.
At any time prior to the Hearing, the witness notifies the Committee in
writing of a serious and unexpected emergency or illness that prevents
the witness from attending.
e. If a witness fails to appear or is excused from attending under the provisions in d
above, the Committee shall determine whether the Hearing shall continue as
scheduled or whether, in the interests of fairness, the Hearing should be
rescheduled to the earliest possible mutually agreeable date. If the Hearing
proceeds as scheduled, but either Party considers the absent witness' testimony
to be essential, then that Party may, at the conclusion of the Hearing, petition
the Committee for a subsequent Hearing to be limited to eliciting the absent
witness' testimony.
f. The Hearing Panel shall attempt to avoid inconveniencing witnesses by
realistically scheduling the time each witness is expected to testify and by
conducting the Hearing as expeditiously as is consonant with fairness and due
process.
g. Unless excused according to d above, the failure of a witness who is a university
employee to comply with section c above constitutes a violation of their
responsibilities as a member of the University community and will result in
whatever sanctions the administration deems appropriate.
h. Claims of special privilege by witnesses shall be ruled upon by the Hearing Chair.
6. Advisors and Observers
a. Each Party is free to determine the degree to which their advisor will conduct
their case, including presenting opening and closing statements and questioning
witnesses.
b. Each observer selected by a Party may only observe and may not otherwise
participate in the Hearing.
c. If a person serves as an advisor for either the Respondent or Initiator, that
person cannot also serve as a witness without violating the Hearing procedures,
Section C.2.a.v., and Section C.2.b.v, above.
Page 11 of 23
7. Committee Report
a. Upon conclusion of a Hearing, the Committee shall write its recommendations to
the Provost within 14 working days after the hearing. If the Provost has a conflict
of interest the report will go to the President. The Report shall address two
questions:
i.
ii.
iii.
Does the evidence provide adequate proof of the Initiator's charges?
If so, do the charges constitute a terminable offense, i.e., gross
irresponsibility, incompetence, or moral turpitude?
Both the opinion of the majority and a report of those in the minority (in
the event the opinion is not unanimous) shall be provided to the Provost
(or President). These opinions should be signed by the concurring parties
at the discretion of the members of the panel. In the event the panel
chooses not to sign the opinions, the number of members supporting
each position shall be provided.
b. Within 21 days after receipt of the Report, which includes the recommendation,
the Provost (or President) shall, in writing, either affirm the Report or refer it
back to FWP with detailed objections and/or suggestions. If the Report is
referred back, FWP shall review the Provost's (or President’s) response, taking
into account any objections or suggestions therein. FWP may submit a revised
report or decline to do so within 21 days to the Provost (or President), who may
affirm, modify, or reject it within 21 days. If the Report is rejected or modified,
then the Provost (or President) shall provide a written statement to the
Committee and both parties describing the substantive reason(s) for rejection or
modification. The Provost's (or President’s) decision shall be final and conclusive,
and the matter in question shall be deemed closed, unless either Party or the
complainant requests an appeal to the Board of Trustees within 21 days after
receipt of a written copy of the Provost's (or President’s) decision. The Board of
Trustees may hear appeals at their discretion, and the Board's decision shall be
final. All communication shall be made available to all Parties and the
complainant.
c. The Committee shall provide a copy of its Report to the Provost and to each
Party. A copy of the report should also be provided to the Complainant. The
Committee shall not provide a copy of, or show, its report to anyone else. The
Provost or the Parties may disclose the contents of the Report at their discretion.
Page 12 of 23
II. Mediation and Hearing Procedures
A. Definitions
For the purposes of Faculty Welfare and Privileges Committee (FWP) procedures as outlined
below, the following words have these specific meanings:
1. A Complaint is any question within the jurisdiction of the FWP brought by a Faculty
member for mediation or hearing. Note that a "Complaint" is not the same as a
"grievance." A grievance is an alleged violation of the AAUP bargaining agreement
and is pursued through the AAUP Grievance Procedure.
2. Mediation refers to the specific steps in B‐2 below for resolution of faculty
Complaints.
3. Hearing refers to the specific steps in C below for the hearing and investigation of
faculty Complaints after the failure of Mediation.
4. Faculty refers to all full-time and part-time Professors, Associate Professors,
Assistant Professors and Instructors, who do not hold an administrative position at
or above the level of department chair/program director.
5. The Committee refers to the Faculty Welfare and Privileges Committee.
6. Initiator refers to a Faculty member who brings a Complaint to the Committee.
7. Respondent refers to Faculty member(s), including administrators, against whom a
Complaint is brought by Initiator(s).
8. Party refers to either Initiator(s) of or Respondent(s) to a Complaint.
9. Hearing Panel refers to the Committee members selected to hear a particular
Complaint.
10. Working Day refers to the days when the University conducts regular business,
normally Monday through Friday and excluding all University holidays. Winter and
Summer session days are included. To count Working Days, Parties exclude the day
of the receipt of materials or notice requiring response.
11. Complainant refers to the student, staff or faculty member who brought a sexual
misconduct or other formal complaint of wrongdoing against the Respondent
prompting the FWP proceeding.
Page 13 of 23
12. Sexual Misconduct is a term used to encompass unwanted or unwelcome conduct
of a sexual nature that is committed without consent. Sexual Misconduct may
include sexual harassment, sexual assault, domestic violence, dating violence and
stalking. Speech appropriately related to curriculum, teaching, research and
scholarship is not sexual misconduct. Nothing in this policy shall infringe upon First
Amendment or academic freedom protections set forth in either the Faculty
Handbook or in the Collective Bargaining Agreement between the University of
Delaware and the American Association of University Professors.
B. Procedures
1. General Provisions
a. All Faculty may avail themselves of these procedures.
b. All Parties to a Complaint before the Committee must comply with the
Committee's procedures. In particular, all Parties must attend and participate
fully in any duly scheduled Committee Hearings on the Complaint to which
they are Parties, unless they are excused from attending in accordance with
C‐4‐b below.
c. The burden of proof in the proceedings rests with the party or parties
bringing the charge, and the relevant standard in Faculty Welfare and
Privileges complaint and proceedings under this Part II is a preponderance of
the evidence (more likely than not).
d. A Party's failure to attend or participate fully in a duly scheduled Committee
Hearing constitutes a violation of the obligations of Faculty at the University
of Delaware and will result in such sanctions as the administration deems
appropriate.
e. A Party's failure to comply with a provision of Committee procedures will
result in that Party's loss of those rights provided by that part of the
procedure (for example, documents not submitted within specified time
limits will not be admitted as evidence at the Hearing). One Party's failure to
comply with Committee procedures does not abrogate the other Party's
responsibility to comply.
f. Parties engaged in a Hearing (Section C below) may enlist the help of any
employee of the University of Delaware, except those serving on FWP and
those employed in the Office of General Counsel, who shall act as an advisor
or observer (Section C‐2‐a‐ii below). If the complaint involves Sexual
Misconduct, the Parties may engage any person to be an advisor.
Page 14 of 23
2. Procedures for Mediation
a. If the underlying complaint involves an allegation of sexual misconduct, these
mediation procedures shall not be followed.
b. Before bringing a dispute to the Committee by communicating a Complaint
to the Committee Chair, a faculty member is expected to have exhausted all
other reasonable means of resolving the dispute, including, where
appropriate, discussion with the faculty member's Chair and/or Dean.
c. An Initiator(s) begins the Mediation process by communicating a Complaint
to the Chair of the Committee. If, after discussion with the Chair, the
Initiator(s) decides to withdraw the Complaint, or if the Initiator(s) and the
Chair mutually agree to drop the Complaint, then the matter is closed and no
record of the Complaint is kept.
d. If the Complaint is not terminated through the discussion process above,
the Initiator(s) may present a preliminary Complaint in writing to the Chair of
FWP and to the person(s) against whom the Complaint is directed.
e. The Chair shall refer the Initiator(s) to a member of the Faculty whom the
Chair, with the concurrence of the Committee, has appointed to act as
Mediator. With the approval of the Committee, a member of the Committee
may serve as mediator in a complaint, but may not serve on the Hearing
Panel, nor serve as an advisor or observer in the Complaint Hearing and must
recuse self from all committee deliberations concerning this complaint. The
Mediator shall work with the Initiator(s) and Respondent(s) to investigate the
Complaint and effect a resolution agreeable to all Parties.
f. Mediation is concluded when:
i.
The Complaint is withdrawn; or
ii.
The Complaint is resolved to the satisfaction of all Parties, including
the Complainant (as appropriate); or
iii.
The Mediator determines that no informal resolution is possible; or
iv.
After 30 Working Days (or after any extension agreed to by the
Initiator(s), Mediator, and the Chair of FWP), the Complaint has not
been resolved.
g. Upon conclusion of Mediation, the Mediator shall report the results to the
Page 15 of 23
Committee within fifteen Working Days.
h. If a majority of the Committee determines that the Complaint falls within its
purview, the Chair shall advise the Initiator(s) of their right to a Hearing
under Section C. If a majority of the Committee determines that the
Initiator's Complaint does not fall within its purview or that the Complaint is
insubstantial, then no Hearing on the matter shall be held.
C. Procedures for the Hearing
1. Preliminary Steps
a.
Written Complaint
If the Committee agrees to hear the Complaint, the Initiator(s) files with
the Committee and the Respondent(s) an expanded written Complaint
which specifies the charge(s), reviews the evidence, and includes the
remedies sought.
b.
Written Response
Within ten Working Days after the date that the Initiator(s) file(s) a
Complaint, the Respondent(s) shall file with the Committee a Response
that, at a minimum, indicates whether the Respondent(s) deny the
Complaint.
c.
Pre‐Hearing Meeting
Within 15 Working Days after the Initiator(s) submit the expanded
written Complaint, the Chair shall conduct a short Pre‐Hearing Meeting
with Initiator(s) and Respondent(s). Each Party shall have the opportunity
to be accompanied by their advisor, and the Complainant, if the
Complainant is involved, along with the Complainant’s advisor should the
Complainant wish, shall have an opportunity to meet with the Chair,
either at the same time as the Pre-Hearing Meeting or separately at the
option of the Complainant. At or before this meeting, any Party may
raise any questions about the charge, the hearing, advisors, or any other
procedural matter; and the Complainant shall have the same right. At the
meeting, the Chair shall:
i.
Fix an expeditious and mutually agreeable time for the
Hearing; reasonable efforts being made to schedule the
Hearing within 45 Working Days of the Pre‐Hearing
Meeting. Such Hearing should not be scheduled for a date
Page 16 of 23
greater than 65 Working Days after the Pre‐Hearing
Meeting;
d.
ii.
Review Hearing procedures, including the Parties'
obligations, the roles of advisors and observers, the rules
for submitting documentary evidence, and possible limits
on the number of witnesses;
iii.
Set deadlines for submission of documentary evidence and
names of witnesses to be called;
iv.
Identify advisors and observers selected by the Parties;
and
v.
Tentatively name the Hearing Panel, pursuant to any
Party's claims of conflict of interest under Section C‐3‐b or
other cause for excusing a Hearing panel member.
Witness Lists
Parties shall submit the names of witnesses to the Committee within the
time agreed upon in section c‐3 above. The Committee shall make the
names available to all other Parties immediately. If the Committee
decides to call additional witnesses, it will immediately communicate
their names to all Parties.
e.
Documents
i.
Parties shall submit documents to the Committee at least 10
Working Days before the Hearing or lose the right to submit
documents. Within 5 Working Days after receipt, the Committee
shall make all documents available in the Senate office to all
Parties, the Complainant and the Provost, and to no one else;
except that the Complainant, if there is one, also shall be given
access to all documents in the same manner as access is granted
to all Parties.
ii.
All documents shall be submitted in duplicate with one set being
original documents if at all possible. All documents shall remain in
the possession of the Committee. If original documents are in the
possession of someone not a Party to the Hearing, then the
Committee may request the submission of any such documents
for the purpose of making a copy of such document which shall be
regarded as if original. If original documents no longer exist, then
Page 17 of 23
copies may be accepted, subject to verification where possible.
iii.
All documents and correspondence received by the Committee
that relate to a Hearing, or to an attempt at Mediation that
precedes it, shall be made available by the Committee to the
Parties to that Hearing, to the Provost, and to no one else. Parties
may not remove original documents from the Senate Office, but
may make and remove copies. Items made available shall be
considered confidential and shall not be communicated to anyone
not a Party, advisor or observer.
f. The time periods, deadlines and Hearing dates set forth in these procedures
are to be adhered to by all Parties and the Committee. However, for good
cause presented in writing by any Party or considered necessary by the
Committee or Hearing Panel, reasonable extensions may be granted by the
Hearing Panel.
2. The Hearing
a. Attendance is limited to the following:
i.
The Initiator(s) and the Respondent(s).
ii.
One advisor selected by each Initiator and one advisor selected by
each Respondent. Advisors shall be employees of the University of
Delaware as outlined in B-1-f above , except that, in any matter
involving allegations of Sexual Misconduct, any Party and the
Complainant shall be entitled to select as their advisor any person
regardless of whether such person is employed by the University of
Delaware.
iii.
One observer selected by each Initiator and one observer selected by
each Respondent. These observers must be identified prior to the
hearing.
iv.
The members of the Committee and supporting staff.
v.
Each witness during their testimony.
vi.
The Complainant may, but is not required to, attend the entire
hearing accompanied by an advisor or advocate of the Complainant’s
choosing. If the Complainant does not wish to be present in the
hearing room, the Complainant should be allowed to participate by
Page 18 of 23
videoconference.
b. Conduct of the Hearing
i.
It is the responsibility of the Committee and its support staff to
arrange hearing space and maintain records of the Hearing.
ii.
The Committee Chair or their appointed representative shall serve as
Chair of the Hearing. This Chair shall call the Hearing to order,
determine all procedural questions and objections raised at the
Hearing, and determine the admissibility of evidence.
iii.
All Parties, Advisors, Observers, Complainants (as appropriate) and
members of the Hearing Panel shall be identified for the record.
iv.
The record shall include both the Initiator(s)' Complaint and the
Respondent(s)' response.
v.
Only members of the Hearing Panel and the Parties may question a
witness unless otherwise provided for pursuant to section c, below.
vi.
Each witness shall be present in the hearing room only during the
time of their testimony and shall refrain from discussing the case with
other witnesses; provided, however, that the Complainant shall be
entitled to be present at the Hearing at all times as provided in
Section II.C.2.a.vi above.
c. Statements and Questioning of Witnesses
i.
First the Initiator(s) and then the Respondent(s) may make an
opening statement.
ii.
The order in which witnesses shall be heard is as follows: first the
witnesses called by the Initiator(s), second those called by the
Respondent(s), and third those called by the Committee.
iii.
The order in which each witness shall be questioned is as follows:
a. Witnesses called by the Initiator shall be questioned first by
the Initiator, then by the Respondent and then by the
Committee.
b. Witnesses called by the Respondent shall be questioned first
by the Respondent, then by the Initiator and then by the
Page 19 of 23
Committee.
c. Witnesses called by the Committee shall be questioned first by
the Committee, then by the Initiator and then by the
Respondent.
d. If the Complainant is a witness, the person against whom the
complaint was brought may not directly question the
Complainant. Questioning should be conducted by the faculty
member’s advisor.
d.
iv.
After the Hearing Panel and the Parties have questioned a witness,
members of the panel and Parties may pose additional questions at
the discretion of the Chair.
v.
After all witnesses have been questioned, first the Initiator(s) and
then the Respondent(s) may make closing statements. After the
closing statements, the Hearing Panel may further question the
Parties.
Transcript of Hearing
A transcript of the Hearing shall be made available by the Committee to
the Parties to that Hearing, to the Provost, to the Complainant and to no
one else. The Parties and the Complainant shall not provide a copy of the
transcript or show it to anyone other than their advisors, observers or
legal counsel.
3. The Hearing Panel
a.
Membership
The Hearing Panel shall consist of five members of the Committee unless,
because of conflicts of interest as defined below b, only four Committee
members are eligible.
b.
Conflict of Interest
i.
Any member of the Committee who is a member of the department
or unit of the Initiator(s) or the Respondent(s) or who has a
relationship of friendship, animosity, or some other nature that goes
beyond mere personal acquaintance or professional association may
not serve on the Hearing Panel unless otherwise agreed by all Parties.
Page 20 of 23
ii.
Either Party may request that any member of the Hearing Panel be
excused for cause. Such a request must be made in writing to the
Committee no later than five Working Days after the Pre‐Hearing
Meeting. The Committee shall decide whether the alleged cause
justifies excusing the member and shall notify all Parties of its
decision and reasons therefore at least 5 Working Days prior to the
Hearing.
4. Attendance
a. All Parties to a Complaint before the Committee must attend and fully
participate in any duly scheduled Hearings on that Complaint.
b. The Committee may excuse a Party from attending under the following
circumstances:
i.
At least 15 Working Days prior to the Hearing, the Party notifies the
Committee in writing of a significant, conflicting obligation that
prevents the Party from attending; or
ii.
At any time prior to the Hearing, the Party notifies the Committee in
writing of a serious and unexpected emergency or illness that
prevents the Party from attending.
c. A Party's failure to adhere to section a above, unless excused pursuant to
sections b‐i or b‐ii above, constitutes a violation of the obligations of Faculty
at the University of Delaware and will result in such sanctions as the
administration deems appropriate. In addition, at its discretion, the
Committee may proceed with a Hearing in a Party's absence.
d. If a Party is excused pursuant to sections b‐i or b‐ii above, the Committee
shall postpone the Hearing, reset the Hearing to the earliest possible
mutually agreeable date, and officially notify all Parties and witnesses of the
new hearing date within five Working Days.
5. Witnesses
a. It is the responsibility of the Parties to name their witnesses by the deadline
fixed in the Parties' preliminary agreement.
b. In the event that either the Initiator(s) or the Respondent(s) discover new
witnesses after the deadline agreed upon, their names shall be provided to
the Committee immediately. If the Committee determines that this discovery
is legitimate, then the other Parties shall be informed of the names of the
Page 21 of 23
new witnesses immediately. However, all new witnesses must be identified
and their names communicated to all Parties at least eight Working Days
prior to the Hearing.
c. Each witness duly notified of a Hearing is obliged to attend and fully
participate in hearing procedures.
d. The Committee may excuse a witness from attending under the following
circumstances:
i.
Within seven Working Days of the date of the witness' notice to
appear, the witness notifies the Committee that the witness is unable
to appear; or
ii.
At any time prior to the Hearing, the witness notifies the Committee
in writing of a serious and unexpected emergency or illness that
prevents the witness from attending.
e. If a witness fails to appear or is excused from attending under the provisions
in d above, the Committee shall determine whether the Hearing shall
continue as scheduled or whether, in the interests of fairness, the Hearing
should be rescheduled to the earliest possible mutually agreeable date. If the
Hearing proceeds as scheduled, but either Party considers the absent
witness' testimony to be essential, then that Party may, at the conclusion of
the Hearing, petition the Committee for a subsequent Hearing to be limited
to eliciting the absent witness' testimony.
f. The Hearing Panel shall attempt to avoid inconveniencing witnesses by
realistically scheduling the time each witness is expected to testify and by
conducting the Hearing as expeditiously as is consonant with fairness and
due process.
g. Unless excused according to d above, the failure of a witness who is a
university employee to comply with section c above constitutes a violation of
the employee’s responsibilities as a member of the University community
and will result in whatever sanctions the administration deems appropriate.
6. Advisors and Observers
a. Except in the circumstances outlined in section B.1.f above, advisors shall be
employees of the University of Delaware.
b. Each advisor shall act only as an advisor unless the Hearing Panel agrees to a
Party's request that the Party’s advisor undertake functions otherwise
Page 22 of 23
assigned to the Party under Section C‐2‐b and c above such as the
presentation of opening and closing statements and the questioning of
witnesses. Any such substitution by an advisor must also be agreed to by the
other Party unless the Hearing Panel finds compelling reasons to agree to the
substitution without the other Party's agreement. Without such agreement
from the Hearing Panel, the advisor is not to take any action or make any
statement either before or during the Hearing which would appear on the
transcript of the Hearing.
c. Each observer selected by a Party may only observe and may not otherwise
participate in the Hearing.
7. Advisory Opinion and Final Decision
a. Upon conclusion of a hearing and receipt of the hearing record, including the
hearing transcript and all exhibits admitted at the hearing, the committee
shall write an advisory opinion to the Provost, within 14 Working Days, that
includes the transcript and all exhibits admitted at the hearing, the
committee's conclusions about the case and any remedies the committee
may recommend. These remedies are not limited to those specified by the
initiator(s) in the complaint.
b. The committee shall provide a copy of its opinion to the Provost and to each
party, including the Complainant. The Provost will issue a decision within 45
Working Days of receipt of the opinion. The committee shall not provide a
copy of, or show, its opinion to anyone else. The Provost or the parties may
disclose the contents of the opinion at their discretion.
Page 23 of 23